RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 August 2007
	DOCKET NUMBER:  AR20070005923 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Conrad V. Meyer

Chairperson

Mr. Dale E. DeBruler

Member

Ms. Ernestine R. Moya

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that it has been 17 years since he was discharged and believes an honorable discharge is due.  The applicant continues that he has improved his life by earning a Bachelor of Science (BS) Degree and will be working with the Pueblo Country Sheriff's Office.

3.  The applicant provides copies of his self-authored letter, dated 1 April 2007; DD Form 214 (Certificate of Release or Discharge from Active Duty); and his Bachelor of Science diploma in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military record shows that at the age of 22, he enlisted in the Regular Army on 1 February 1991.  He was trained in, awarded, and served in military occupational specialty (MOS) 63S (Heavy Wheel Vehicle Mechanic).  The highest rank he attained while serving on active duty was in the rank of private/pay grade E-2.  

4.  The applicant's records show he received the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

5.  The applicant's records do not show any significant acts of valor during his military service.


6.  On 21 May 1990, charges were preferred against the applicant for being absent without leave (AWOL) during the period 6 March 1990 through 7 May 1990.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, and in so doing admitted guilt to the offense.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  

7.  On 15 January 1991, the separation authority approved the applicant's request for discharge and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate.  

8.  The applicant's DD Form 214 shows that he was separated on 1 February 1991, under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by court-martial and furnished an under other than honorable conditions discharge.  The applicant's DD Form 214 also shows that he served 2 years, 6 months, and 21 days of active military service.  His records show that he had 62 days of lost time due to being AWOL.

9.  The applicant's self-authored letter, dated 1 April 2007, begins with him quoting George S. Patton "If a man does his best, what else is there."  The applicant continues by asking the Board to review his service records and upgrade his characterization of discharge from an under other than honorable conditions discharge to an honorable discharge.  The applicant continues that he has completed his BS Degree in Sociology/Criminology, and Computer Information Systems from Colorado State University.  The applicant continues that he has improved his life, stayed out of trouble and will be working in law enforcement.  The applicant continues that he was young and made a mistake, and if he could go back he would change the outcome, but he can't.  The applicant concludes his statement by saying he has earned an honorable discharge. 

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.
11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

14.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for an AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he was young and made a mistake while he was in the Army.

2.  Evidence of records show the applicant's was 22 years old at the time of his enlistment into the Army and at the time the offense occurred.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

4.  The applicant's service record shows that charges were preferred against him for being AWOL and that he voluntarily requested discharge in lieu of a trial by court-martial.

5.  Additionally, discharge under the provisions of Chapter 10 of Army Regulation 635-200 requires an admission of guilt to the offenses charged and usually results in a discharge under other than honorable conditions.  

6.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  

7.  The applicant's records show that he had 62 days of lost time due to being AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

8.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

9.  The applicant’s contention regarding his post service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ CVM __   _ DED___   _EM___   DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




__Conrad V. Meyer_
          CHAIRPERSON




INDEX

CASE ID
AR20070005923
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.